Fleurimond et al v. City of New York et al

Filing 63

ORDER: For the reasons stated in the attached, the Court grants Defendants' motion for summary judgment in its entirety and dismisses this action. The Clerk of Court is respectfully directed to enter judgment and close this case. Ordered by Judge Pamela K. Chen on 8/21/2019. (Nadig, Alok)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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RICARDO FLEURIMOND and SAVERIA
FECENTESE, as Administrator of the Estate of
SAVINO DIGIOSA,

MEMORANDUM & ORDER
16-CV-750 (PKC) (ST)

Plaintiffs,
- against RODNEY HOLDER, HONG LOW, JOHN
WRIGHT, CHRISTINE ABRIL, SHEILA
BENJAMIN, and the CITY OF NEW YORK,
Defendants.
-------------------------------------------------------x
PAMELA K. CHEN, United States District Judge:

Plaintiffs Ricardo Fleurimond and Savino Digiosa (“Plaintiffs”) 1 bring this action against
Defendants Rodney Holder (“Holder”), Hong Low (“Low”), John Wright (“Wright”), Christine
Abril (“Abril”), Sheila Benjamin (“Benjamin”), and the City of New York (collective ly,
“Defendants”), advancing claims under 42 U.S.C. § 1983 for malicious prosecution and munic ipa l
liability. Defendants move for summary judgment on all of Plaintiffs’ claims. For the following
reasons, the Court grants Defendants’ motion for summary judgment in its entirety and dismisses
this action.

This action was filed on February 12, 2016. (See Complaint (“Compl.”), Dkt. 1.) On
October 26, 2016, Defense Counsel informed the Court that Plaintiff Digiosa had passed away.
(Dkt. 15.) Saveria Fecentese, the executor of Digiosa’s estate, was substituted for Digiosa in this
action pursuant to Federal Rule of Civil Procedure 25(a)(1). (Dkt. 20.) Notwithstanding this
substitution and for the sake of clarity, the Court refers to Digiosa as a Plaintiff in this
Memorandum & Order.
1

1

BACKGROUND
I.

Facts
A.

The Taking of the Air Conditioners

During the events at issue in this case, Plaintiffs Fleurimond and Digiosa were employed
as City Laborers within the New York City Department of Health and Mental Hygiene
(“DOHMH”).

(Defendant’s 56.1 Statement 2 (“Defs’ 56.1”), ¶¶ 3–4; Deposition of Ricardo

Fleurimond (“Fleurimond Dep.”), Dkt. 60-1, at ECF 3 448.) 4 As City Laborers, Plaintiffs regular ly
worked together as partners and completed work assignments that required them to pick up and
deliver items between DOHMH locations. (Defs.’ 56.1, ¶¶ 15–16.) Plaintiffs were each assigned
a DOHMH work van, which they used both to travel to and from work, and to complete tasks
during their work shifts. (Id. ¶ 17.) In October of 2012, the Kingsland Warehouse—a storage
space for DOHMH supplies—flooded as a result of Hurricane Sandy, and the ground floor was

Unless otherwise noted, a standalone citation to a party’s 56.1 statement denotes that this
Court has deemed the underlying factual allegation undisputed. Any citation to a party’s 56.1
statement incorporates by reference the documents cited therein. Where relevant, however, the
Court may cite directly to the underlying document. The Court has deemed facts averred in a
party’s 56.1 statement to which the opposing party cites no admissible evidence in rebuttal as
undisputed. See Lumbermens Mut. Cas. Co. v. Dinow, No. 06-CV-3881 (TCP), 2012 WL
4498827, at *2 n.2 (E.D.N.Y. Sept. 12, 2012) (“Eastern District Local Rule 56.1 requires . . . that
disputed facts be specifically controverted by admissible evidence. Mere denial of an opposing
party’s statement or denial by general reference to an exhibit or affidavit does not specifica lly
controvert anything.” (emphasis in original)). Additionally, to the extent a party’s 56.1 statement
“improperly interjects arguments and/or immaterial facts in response to facts asserted by [the
opposing party] without specifically controverting those facts,” the Court has disregarded the
statement. Risco v. McHugh, 868 F. Supp. 2d 75, 87 n.2 (S.D.N.Y. 2012).
2

“ECF” refers to the “Page ID” number generated by the Court’s CM/ECF docketing
system and not the document’s internal pagination.
3

City Laborers “do all the moving jobs for the [C]ity of New York or for the [New York
City] Health Department,” such as delivering supplies and disposing of unneeded items.
(Fleurimond Dep., Dkt. 60-1, at ECF 448.)
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2

considerably damaged. (Id. ¶¶ 6, 8; Fleurimond Dep., Dkt. 60-1, at ECF 483–84.) The Kingsla nd
Warehouse was subsequently closed for several months so that it could be repaired. (Deposition
of Rodney Holder (“Holder Dep.”), Dkt. 60-2 at ECF 655.)
On February 25, 2013, Plaintiffs were given a written invoice at the DOHMH garage
instructing them to pick up supplies at the Kingsland Warehouse. (Defs.’ 56.1, ¶ 18.) When
Plaintiffs arrived at the Kingsland Warehouse, they encountered Defendant Holder, whom they
referred to by his nickname, “Kenny.” (Id. ¶ 20; Plaintiffs’ 56.1 Statement (“Pls.’ 56.1”), Dkt. 59,
¶ 20; Fleurimond Dep., Dkt. 60-1, at ECF 482.) 5 Holder called Defendant Abril, Director of
Materials Management at DOHMH (Defs.’ 56.1, ¶ 5), to tell her that Plaintiffs were at the
Kingsland Warehouse to pick up supplies (id. ¶ 23). Abril then directed Defendant Low, a
DOHMH stock worker at the Kingsland Warehouse (id. ¶ 12), to go to the Kingsland Warehouse
and instruct Plaintiffs on how to transport various items described on the invoice to a differe nt
location (Deposition of Christine Abril (“Abril Dep.”), Dkt. 60-3, at ECF 683; Defs.’ 56.1, ¶ 24).
Holder told Plaintiffs to wait for Low on the loading dock at the Kingsland Warehouse. (Defs.’
56.1, ¶ 25.)
The details of the subsequent interaction that took place between Defendant Holder and
Plaintiffs are disputed. While waiting on the loading dock, Plaintiffs observed stacks of about 75

During the events at issue in this case, Defendant Holder worked as a Records Aide for
DOHMH and was responsible for receiving, storing, and locating documents and records. (Defs.’
56.1, ¶ 10.) Plaintiff Fleurimond was under the impression that Holder was “above” him in the
chain of command at DOHMH and that Holder had the authority to decide which items were to be
transported to and from the Kingsland Warehouse. (Fleurimond Dep., Dkt. 60-1, at ECF 495–96.)
According to Fleurimond, Plaintiffs believed Holder was a DOHMH supervisor because of
paperwork they had received, including an invoice, which identified him as such. (Id.)
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to 100 air conditioners in boxes. (Id. ¶ 26.) 6 At deposition, Plaintiff Fleurimond testified that he
asked Holder whether he could take a couple of air conditioners for himself and Holder replied
that the air conditioners were “going in the garbage” and that Fleurimond could “do whatever [he]
want[ed] to do.” (Fleurimond Dep., Dkt. 60-1 at ECF 486; see also id. at ECF 538 (“[Holder] said
[the air conditioners are] going to go in the garbage, that’s [what] you guys are coming here for
anyway, to throw them away, they’re salvage, 7 so yes, you can take one or whatever you want.”).
According to Holder, Plaintiffs asked if the air conditioners were going to be “put in the garbage”
and the exact phrase Holder said in response was that “the only thing that I know about, are my
records.” (Holder Dep., Dkt. 55-4, at ECF 302.) Intending to take the air conditioners home for
their personal use (Defs.’ 56.1, ¶ 31), Plaintiffs loaded five of the air conditioners into Plaintiff
Fleurimond’s work van and two of the air conditioners into Plaintiff Digiosa’s work van (id. ¶ 30).
At deposition, Fleurimond testified that Holder helped Plaintiffs transport the air conditioners from
the loading dock into Fleurimond’s and Digiosa’s work vans. (Fleurimond Dep., Dkt. 60-1, at
ECF 490.) Completely denying this version of events, Holder testified at deposition that (1) he
never helped Plaintiffs load the air conditioners into their work vans, (2) he never saw Plaintif fs
loading the air conditioners into their work vans, and (3) he never saw the air conditioners in
Plaintiffs’ work vans at any point in time. (Holder Dep., Dkt. 60-2, at ECF 658.)
Shortly after Plaintiffs finished loading the seven air conditioners into their respective work
vans, Defendant Low arrived. (Defs.’ 56.1, ¶ 32.) Low identified the supplies Plaintiffs were

At deposition, Plaintiff Fleurimond testified that some of the boxes were “open because
of water damage” (Fleurimond Dep., Dkt. 60-1, at ECF 488–89), but conceded that the five air
conditioners he intended to take home for private use were in boxes that were unopened (id. at
ECF 490).
6

“Salvage” refers to items that are or will be “throw[n] [into] the garbage” or otherwise
disposed of with no anticipated future use. (Id. at ECF 470.)
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assigned to transport and helped load those supplies into Plaintiffs’ work vans. (Id. ¶ 33.) In the
process, Low observed the air conditioners in the back of Plaintiffs’ work vans, but made no
mention of the air conditioners to Plaintiffs. (Id. ¶ 34; Pls.’ 56.1, ¶ 34.) After Plaintiffs left the
Kingsland Warehouse, Low contacted Defendant Wright—supervisor of stock workers at the
Kingsland Warehouse (Defs.’ 56.1, ¶ 13)—and told him about the air conditioners that he saw in
Plaintiffs’ work vans (id. ¶ 36). Wright then called Defendant Abril and told her that Low “said
that there was a problem when [Low] was loading one of the vans” and “that [Low] saw some of
the air conditioners.” (Abril Dep., Dkt. 60-3, at ECF 682–83.) Abril “first contacted the Bureau
of Labs,”8 which owned the air conditioners, “to see if they possibly sent someone for air
conditioners and forgot to notify” her. (Id. at ECF 683.) After the Bureau of Labs confirmed that
it had not sent anyone for the air conditioners, Abril “called Roy Meade 9 to [ask] the same thing,
if he had sent some drivers for air conditioners that [she] was unaware of and he said no.” (Abril
Dep., Dkt. 60-3, at ECF 683.) Abril told Roy Meade to check to see if the air conditioners had
indeed been removed from the Kingsland Warehouse and, if so, to ensure that they were promptly
returned. (Id. at ECF 684.)
Defendant Wright then called Plaintiff Fleurimond and told him to return the air
conditioners to the Kingsland Warehouse. (Defs.’ 56.1, ¶ 39.) Fleurimond subsequently called
Plaintiff Digiosa and told him to return the two air conditioners Digiosa had taken. (Id.) At
deposition, Fleurimond summarized the events as follows:
[Wright] said they said you weren’t supposed to take the ACs, so bring them back.
I said yeah, but [Holder] gave them [to] me. I mean, I call [Holder] Kenny or
something. Whatever I call him. [Holder] said yeah, I can have it. [Wright] said
8

The record is unclear as to what the “Bureau of Labs” is.

During the events at issue in this case, Roy Meade was Plaintiffs’ direct supervisor.
(Fleurimond Dep., Dkt. 60-1, at ECF 466.)
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all right, but they found out you guys weren’t supposed to take it, so bring them
back. I said all right. So that’s when I called Digiosa. I said I just received a phone
call from [Wright], he said for us to bring them back, you know. And you know,
Digiosa said what do you mean they said bring them back? I said, yeah, they said
they found out we weren’t supposed to take them, to bring them back. So I rela[y]ed
the message to Digiosa, so then I called [Wright]. I said I got like two more stops
left, can I bring them back the same day once I’m done[?] He said, well, to be
honest with you—they close early. They close at 3 and we punch out at 3:30. He
said the best thing for you to do is bring them back in the morning, because by the
time we get there they’re closed. So we took the ACs—well, I took the AC—the
AC was in my van and I drove home.
(Fleurimond Dep., Dkt. 60-1, at ECF 498–99.) After Plaintiffs finished work for the day, they
traveled to their respective homes in their DOHMH work vans, where the air conditio ners
remained overnight. (Defs.’ 56.1, ¶¶ 41–42; Fleurimond Dep., Dkt. 60-1, at ECF 497.) Plaintif fs
returned the air conditioners to the Kingsland Warehouse the following morning. (Defs.’ 56.1,
¶ 43.)
B.

The Prosecution

On the day of the incident, February 25, 2013, Defendant Abril contacted Defendant
Benjamin, DOHMH Deputy Assistant Commissioner and Abril’s direct supervisor (id. ¶ 14), and
informed her “about the missing air conditioners” (id. ¶ 40; Abril Dep., Dkt. 60-3, at ECF 684).
Benjamin told Abril to “file a report with health police.”10 (Id.) The next day, February 26, 2013—
after speaking with Benjamin but before initiating contact with the DOHMH police—Abril came
to learn that Plaintiffs had returned the air conditioners. (Id.) Abril nevertheless complied with
Benjamin’s instruction and reported Plaintiffs’ removal of the air conditioners to DOHMH police
later that day. (Defs.’ 56.1, ¶ 44.) At deposition, Abril suggested that she believed that Plaintif fs
only returned the air conditioners because of her direction to do so, communicated to Plaintif fs

At deposition, Abril clarified that the “health police” are police officers who work
specifically for DOHMH. (Id. at ECF 684.)
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through their immediate supervisor, and that Plaintiffs’ return of the units did not therefore affect
Abril’s belief that Plaintiffs had initially taken the air conditioners without authorization and that
this conduct constituted theft of DOHMH property. (See Abril Dep., Dkt. 60-3, at ECF 684 (“I
had told [Roy Meade] if you could please call [Plaintiffs] to see [if they have the missing air
conditioners], and if they do, please return them.”).)
The DOHMH Complaint identified Abril as the reporter of the crime, the relevant offenses
as Grand Larceny in the Fourth Degree and Criminal Possession of Stolen Property in the Fourth
Degree, and the victim of the crime as DOHMH. (See DOHMH Complaint Report, Dkt. 55-6, at
ECF 306.) Additionally, the DOHMH Complaint identified Plaintiffs as the culprits and contained
the following “description of incident” prepared by DOHMH Investigator Lester Lloyd (“Lloyd ”) :
The reporter [Abril] informed NYC DOHMH Police that [from February 22, 2013
through February 26, 2013] the listed items [seven air conditioners] were removed
without permission or authority from the listed location [DOHMH loading dock].
[Plaintiffs] are the individuals that possessed the listed items without permission or
authority when returning to the listed location.
(Id.; Defs.’ 56.1, ¶ 45.) On February 26, 2013, after reporting the incident to DOHMH police,
Abril informed Benjamin that the air conditioners had been returned. (Abril. Dep., Dkt. 60-3, at
ECF 684.) Benjamin directed Abril to report the incident to the New York City Police Department
(“NYPD”). (Id.)
Three days later, on March 1, 2013, 11 Defendant Abril—at the direction of Benjamin and
other individuals from DOHMH “upper management”—went to the NYPD’s 94th Precinct and
made a complaint about the removal of the air conditioners from the warehouse. (Defs.’ 56.1,

There were 28 days in February 2013. See 2013 Calendar, https://www.calendar365.com/2013-calendar.html (last visited on Aug. 21, 2019). The incident occurred on Monday,
February 25, 2013. Abril reported it to DOHMH police on Tuesday, February 26, 2013 and to the
NYPD that Friday, March 1, 2013. (Defs.’ 56.1, ¶¶ 22–30, 44, 46.)
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¶ 46; Abril Dep., Dkt. 60-3, at ECF 684.) At deposition, Abril testified that she gave the NYPD
“the full story of what was told to me, what everyone else had said, the information regarding the
air conditioners, [and] the money value” of the air conditioners. (Id. at ECF 685.) NYPD officers
then spoke to Defendants Holder and Low as part of an investigation into the alleged crime. (Defs.’
56.1, ¶ 48.) A formal criminal complaint report, dated March 1, 2013, was then created. (Id.)
This complaint contained a narrative portion that provided as follows:
AT T/P/O C/V STATES THAT THE ABOVE SEVEN NEW AIR
CONDITIONERS WERE STOLEN FROM THE ABOVE LOCATION. THE
REPORTER STATES THAT THE ABOVE WITNESSES DID OBSERVE THE
ABOVE[-]MENTIONED PERPS AS THEY DROVE AWAY WITH THE
STOLEN PROPERTY. THE REPORTER STATES THAT THE ABOVE PERPS
ARE EMPLOYED BY THE NYC HEALTH DEPARTMENT AND ARE
KNOWN FOR TAKING THINGS IN THE PAST. THE REPORTER STATES
THAT PERPS BROUGHT BACK THE STOLEN MERCHANDISE, UPON BEING
CONFRONTED BY A SUPERVISOR AT ANOTHER LOCATION. REPORTER
STATES THAT THE PERPS TOOK ADVANTAGE OF THE FACT THAT
SURVEILLANCE CAMERAS WERE RECENTLY REMOVED FROM THE
LOCATION.
(NYPD Complaint Report, Dkt. 55-7, at ECF 307–08 (emphasis added).) The complaint identified
Holder as a witness to the alleged crime (id. at ECF 308), Low as a reporter of the alleged crime
(id. at ECF 309), and Plaintiffs Fleurimond and Digiosa as the perpetrators (id. at ECF 309–10).
The crime identified in the complaint was Grand Larceny. (Id. at ECF 307.)
On March 15, 2013, Plaintiffs were arrested for Grand Larceny in the Fourth Degree and
Criminal Possession of Stolen Property in the Fourth Degree. (Defs.’ 56.1, ¶ 50; NYPD Arrest
Reports, Dkt. 55-8, at ECF 313–18.) Before arraignment, Fleurimond was incarcerated for 16
hours and eight minutes and Digiosa was incarcerated for 12 hours and 44 minutes. (Defs.’ 56.1,
¶ 51.) On the day of Plaintiffs’ arrest, the Kings County District Attorney’s Office charged them
with Attempted Criminal Possession of Stolen Property in the Third, Fourth and Fifth degrees.

8

(Id. ¶ 52.) The charging instrument was signed by NYPD Detective John Gipson, on informa tio n
from non-defendant Lloyd (the DOHMH Investigator) and Defendants Low and Holder. (Id.)
The Kings County District Attorney’s Office then presented Plaintiffs’ criminal case to a
grand jury, before which Defendants Abril, Holder, and Low all testified. (Id. ¶ 53.) Although
the grand jury voted to indict Plaintiffs for Petit Larceny and Grand Larceny in the Fourth Degree
(id. ¶ 54), Plaintiffs’ criminal charges were ultimately dismissed on a motion of the District
Attorney’s Office (id. ¶ 55). The Certificates of Disposition issued by the Kings County Crimina l
Court were sealed pursuant to New York Criminal Procedure Law § 160.50.

(Crimina l

Dispositions, Dkt. 55-11, at ECF 325–26.)
C.

The Arbitration

On March 19, 2013, Plaintiffs Fleurimond and Digiosa were suspended from their jobs at
DOHMH for 30 days for removing department property without authorization. (Defs.’ 56.1, ¶ 56.)
After the 30 days elapsed, Plaintiffs were put on paid suspension until June 28, 2013, when their
employment was terminated.

(Id. ¶ 57.) Plaintiffs subsequently challenged the termination of

their employment through arbitration pursuant to the terms of a collective bargaining agreement
entered into between Plaintiffs’ labor union and DOHMH. (Id. ¶ 58.) Defendants Abril, Holder,
and Low, and Plaintiffs all testified at the arbitration proceedings. (Id. ¶ 59.)
On September 8, 2014, Arbitrator James A. Brown (the “Arbitrator”) issued an opinion in
which he (1) found that Plaintiffs’ testimony that Defendant Holder gave Plaintiffs permission to
take the air conditioners was more credible than Holder’s denial that he ever gave such permissio n,
and that (2) Plaintiffs “sincerely believed that Holder was a supervisor because he opened the
[Kingsland] Warehouse gate for them that morning and had also signed off on their paperwork in

9

the past.” (Arbitration Opinion & Award, Dkt. 55-12, at ECF 338.) Nevertheless, the Arbitrator
reasoned:
Having established that [Plaintiffs] asked for—and received—Holder’s permissio n
to take the air conditioners, the analysis is only half complete. Even with Holder’s
permission, [Plaintiffs] should have known not to take the air conditioners. They
had firsthand knowledge that not all [Kingsland] Warehouse supplies were
“garbage” if only because they were picking up [Kingsland] Warehouse supplies
(bond paper) that day. Moreover, [Plaintiffs] clearly believed the boxed air
conditioners were fully operable or they would not have taken the seven units. In
addition, [Plaintiffs] knew [DOHMH’s] salvage process for officially discarding
unwanted property . . . . It is significant that neither [Plaintiff] claimed that the air
conditioners were being salvaged that day. Moreover, Fleurimond in 2012 had
been directed by [DOHMH] Police to write a statement in connection with
[DOHMH] property he took home and later had to return because he did not receive
proper authorization to take it. 12
Thus, [Plaintiffs’] decision to take the boxed air conditioners reflected extremely
poor judgment given that the units were still functional and not, at any rate, being
salvaged. Simply stated, [Plaintiffs] should have known that Holder’s “permiss io n”
did not equate to “authorization” to take Department property. Thus, I find that
[Plaintiffs] are guilty of violating Department Rule 3.25 13 because “while on duty
and without authorization [they] removed air conditioner units from the Kingsla nd
Warehouse.”
(Id. at ECF 339.)
The Arbitrator went on to find that termination of Plaintiffs’ employment was not
warranted and determined that Plaintiffs should be reinstated in their prior positions at DOHMH
without any loss of seniority, but without backpay. (Id. at ECF 340.) DOHMH subsequently
reinstated Plaintiffs’ employment. (Defs.’ 56.1, ¶ 64.)

At deposition, Plaintiff Fleurimond explained that there was one incident that took place
about six or seven months prior to the events at issue in this case in which he was investigated for
removing a box of computer parts from the Kingsland Warehouse. (Fleurimond Dep., Dkt. 60-1,
at ECF 571–73.)
12

DOHMH Department Rule 3.25 covers “[c]onduct prejudicial to good order and
discipline.” (Arbitration Opinion & Award, Dkt. 55-12, at ECF 329.)
13

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II.

Procedural History
On February 12, 2016, Plaintiffs commenced this action, advancing claims of false arrest,

malicious prosecution, and municipal liability under 42 U.S.C. § 1983, 14 as well as neglige nt
hiring, training, and supervision under state law. (See generally Compl.) 15 The parties entered
into discovery and attempted to settle their case without success. (See Dkts. 20–46.) On June 15,
2018, Defendants sought leave to file a motion for summary judgment (Dkt. 44), after which
Plaintiffs voluntarily dismissed their false arrest and state law claims (Dkt. 46). On July 16, 2018,
the Court granted Defendants leave to file their motion for summary judgment. (See July 16, 2018
ECF Entry.) Defendants’ motion was fully briefed on November 19, 2018.

Plaintiffs’ complaint appears to additionally advance a claim of false imprisonment. (See
Compl., ¶ 1 & ECF 11.) The Court treats any such claim as inseparable from Plaintiffs’ false arrest
claim. See Boyd v. City of New York, 336 F.3d 72, 76 n.6 (2d Cir. 2003) (“As goes false arrest, so
goes [the plaintiff’s] false imprisonment claim.”). Moreover, Defendants’ June 15, 2018 letter to
the Court referenced a “failure to intervene” claim. (See Dkt. 44, at ECF 153.) After reviewing
the complaint, the Court is unable to discern any such claim, but notes that Plaintiffs label one of
their § 1983 claims as brought against Defendants for “FAILING TO PROTECT” Plaintif fs
“FROM UNCONSTITUTIONAL HARM.” (Compl., at ECF 8–9 & ¶¶ 41–44.)
14

To the extent Plaintiffs have not abandoned this claim (Dkt. 46), the Court dismisses it.
“[A] cognizable failure to protect claim under § 1983” sounds in the Eighth Amendment and
requires a plaintiff to “show that he is incarcerated under conditions posing a substantial risk of
serious harm” and that “prison officials acted with deliberate indifference to [his] safety.” Warren
v. Goord, 476 F. Supp. 2d 407, 410 (S.D.N.Y. 2007) (quotations omitted). Accordingly, “[t]he
Eighth Amendment bar to cruel and unusual punishment does not apply to Plaintiff[s] because
[they] were not []prisoner[s]” during the events at issue in this case, but were—at most—“simp ly
being held at the police station.” Sanaberia v. Detective Shawn Tezlof, No. 11-CV-6578 (NSR),
2016 WL 4371750, at *6 (S.D.N.Y. Aug. 12, 2016). Finally, even liberally construing this claim
as one for failure to intervene, it would still be dismissed because of the absence of any surviving
constitutional claim. See infra; Soto v. City of New York, 132 F. Supp. 3d 424, 459 (E.D.N.Y.
2015) (“Plaintiff’s failure to intervene claim fails as a matter of law, because there is no underlying
constitutional violation.”).
Although DOHMH, the Kings County District Attorney’s Office, the NYPD, and John
Doe Police Officers were initially named as defendants (Compl., at ECF 1 & ¶¶ 16–18), Plaintif fs
subsequently dismissed their claims against these parties (Dkt. 46).
15

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STANDARD OF REVIEW
Summary judgment is appropriate where the submissions of the parties, taken together,
“show[] that there is no genuine dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” Fed. R. Civ. P. 56(a); see Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 251–52 (1986) (summary judgment inquiry is “whether the evidence presents a suffic ie nt
disagreement to require submission to a jury or whether it is so one-sided that one party must
prevail as a matter of law”). A dispute of fact is “genuine” if “the [record] evidence is such that a
reasonable jury could return a verdict for the nonmoving party.” Anderson, 477 U.S. at 248.
The initial burden of “establishing the absence of any genuine issue of material fact” rests
with the moving party. Zalaski v. City of Bridgeport Police Dep’t, 613 F.3d 336, 340 (2d Cir.
2010). Once this burden is met, however, the burden shifts to the non-moving party to put forward
some evidence establishing the existence of a question of fact that must be resolved at trial. Spinelli
v. City of New York, 579 F.3d 160, 166–67 (2d Cir. 2009); see also Celotex Corp. v. Catrett, 477
U.S. 317, 322–23 (1986). A mere “scintilla of evidence” in support of the non-moving party is
insufficient; “there must be evidence on which the jury could reasonably find for the” non-movant.
Hayut v. State Univ. of N.Y., 352 F.3d 733, 743 (2d Cir. 2003) (quotation omitted). In other words,
“[t]he non[-]moving party must come forward with specific facts showing that there is a genuine
issue for trial.” Caldarola v. Calabrese, 298 F.3d 156, 160 (2d Cir. 2002) (quotation omitted).
When assessing whether a genuine issue of fact exists, the Court must resolve all
ambiguities and draw all reasonable inferences against the moving party. Major League Baseball
Props., Inc. v. Salvino, Inc., 542 F.3d 290, 309 (2d Cir. 2008). The Court also construes any
disputed facts in the light most favorable to the non-moving party. See Adickes v. S.H. Kress &
Co., 398 U.S. 144, 157–59 (1970). However, “the mere existence of some alleged factual dispute

12

between the parties will not defeat an otherwise properly supported motion for summary
judgment.” Anderson, 477 U.S. at 247–48.
DISCUSSION
I.

Malicious Prosecution
Plaintiffs advance malicious prosecution claims against Defendants Holder, Low, Wright,

Abril, and Benjamin. “In order to prevail on a § 1983 claim against a state actor 16 for malicio us
prosecution, a plaintiff must show a violation of [his] rights under the Fourth Amendment, and
must establish the elements of a malicious prosecution claim under state law.” Manganiello v.
City of New York, 612 F.3d 149, 160–61 (2d Cir. 2010) (citations omitted).

To prevail on a

malicious prosecution claim under New York law, “a plaintiff must prove (1) the initiation or
continuation of a criminal proceeding against plaintiff; (2) termination of the proceeding in
plaintiff’s favor; 17 (3) lack of probable cause for commencing the proceeding; and (4) actual
malice as a motivation for defendant’s actions.” Id. at 161 (quotations omitted).

To prove a violation of § 1983, a plaintiff must demonstrate that “defendants violated
[the] plaintiff’s federal rights while acting under color of state law.” McGugan v. Aldana-Bernier,
752 F.3d 224, 229 (2d Cir. 2014). Defendants do not dispute that, as employees and/or offic ia ls
of DOHMH—a state agency—they acted under color of state law for purposes of § 1983.
Nevertheless, the Court notes that “the purpose of § 1983 is to deter state actors from using their
badge of authority to deprive individuals of their federally guaranteed rights and to provide relief
to victims if such deterrence fails.” Wyatt v. Cole, 504 U.S. 158, 161 (1992); see also Morton v.
City of Albany, No. 08-CV-1304 (TJM) (RFT), 2009 WL 2568595, at *5–6 (N.D.N.Y. Aug. 19,
2009) (concluding that a police officer did not act under color of law for purposes of § 1983 when
he pointed his gun at his subordinate civilian employee). Because Defendants do not argue that
they were not acting under color of state law with respect to the events at issue in this case, the
Court does not address this reasoning.
16

In their reply brief, Defendants argue that, in light of Lanning v. City Glens Falls, 908
F.3d 19 (2d Cir. 2018), which the Second Circuit decided on November 7, 2018, “[P]laintif fs
cannot establish the favorable termination prong of the malicious prosecution standard” because
“[t]he evidence of record indicates that [P]laintiffs’ prosecution was terminated on motion of the
DA’s Office” and “there is no evidence that the circumstances of the termination related to any
17

13

In addition to arguing that probable cause existed to initiate prosecution against Plaintif fs,
Defendants also assert a defense of qualified immunity based on the existence of “arguable
probable cause.” (Defendants’ Opening Brief, Dkt. 53, at ECF 195–96); Cortes v. City of New
York, 148 F. Supp. 3d 248, 254 (E.D.N.Y. 2015). A defendant is entitled to qualified immunity
under federal law if “(1) the defendant’s conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would have known, or (2) it was objectively
reasonable for the defendant to believe his actions were lawful at the time of the challenged act.”
Tooly v. Schwaller, 919 F.3d 165, 172 (2d Cir. 2019) (quotation and brackets omitted). As the
Supreme Court explained in Plumhoff v. Rickard, 572 U.S. 765 (2014):
An official sued under § 1983 is entitled to qualified immunity unless it is shown
that the official violated a statutory or constitutional right that was clearly
established at the time of the challenged conduct. And a defendant cannot be said
to have violated a clearly established right unless the right’s contours were
sufficiently definite that any reasonable official in the defendant’s shoes would
have understood that he was violating it. In other words, existing precedent must
have placed the statutory or constitutional question confronted by the offic ia l
beyond debate. In addition, we have repeatedly told courts not to define clearly
established law at a high level of generality, since doing so avoids the crucial
question whether the official acted reasonably in the particular circumstances that
he or she faced.
Id. at 778–79 (quotations, citations, and alterations omitted); see also Drimal v. Tai, 786 F.3d 219,
224–25 (2d Cir. 2015) (“Qualified immunity . . . provides ample protection to all but the plainly

finding indicating actual innocence.” (Defendants’ Reply Brief, Dkt. 56, at ECF 356–57.)
Lanning—which was issued after Defendants served their opening brief but before they served
their reply (compare Dkt. 48 (service of opening brief on August 31, 2018), with November 9,
2018 ECF Entry & Dkt. 56 (service of reply brief on November 19, 2018))—clarified that “where
a dismissal in the interest of justice leaves the question of guilt or innocence unanswered, it cannot
provide the favorable termination required as the basis for [a malicious prosecution] claim.” 908
F.3d at 28–29 (quotations and alterations omitted). The Court declines to consider this argument,
“raised in a reply brief for the first time,” because Plaintiffs have not had “an adequate opportunity
to respond to it.” In re Various Grand Jury Subpoenas, 235 F. Supp. 3d 472, 485 (S.D.N.Y. 2017)
(quotation omitted). In any event, the Court concludes, for the reasons discussed infra, that
summary judgment in favor of Defendants is appropriate on separate grounds.
14

incompetent or those who knowingly violate the law. To lose immunity, an official must violate
a right, the contours of which are sufficiently clear that a reasonable official would understand that
what he is doing violates that right.” (quotation and citation omitted)).
“[T]o show a reasonable belief that probable cause existed, the officer need only show
arguable probable cause. To be immune from suit, then, a defendant need only show that there
was arguably a probability that the arrestee committed a crime.” Donovan v. Briggs, 250 F. Supp.
2d 242, 259 (W.D.N.Y. 2003) (quotation, citation, and italics omitted). “Arguable probable cause”
exists where state officials “of reasonable competence could disagree on the legality of the action
at issue in its particular factual context.”

Walczyk v. Rio, 496 F.3d 139, 154 (2d Cir. 2007)

(quotation omitted); see Escalera v. Lunn, 361 F.3d 737, 743 (2d Cir. 2004) (“Arguable probable
cause exists if either (a) it was objectively reasonable for the [state official] to believe that probable
cause existed, or (b) officers of reasonable competence could disagree on whether the probable
cause test was met.” (quotation omitted)).
For the following reasons, the Court concludes that, even construing the evidence in the
light most favorable to Plaintiffs, (1) Defendants Wright, Abril, and Benjamin all had arguable
probable cause to believe that Plaintiffs had committed a crime; and (2) no reasonable jury could
find that Defendants Holder or Low initiated or continued the criminal proceedings brought against
Plaintiffs. Plaintiffs therefore cannot prevail on their claims against Wright, Abril, and Benjamin,
because they are entitled to qualified immunity, and cannot prevail on their claims against Holder
and Low due to their inability to prove the first element of malicious prosecution.

15

The Court

therefore grants summary judgment to Holder, Low, Wright, Abril, and Benjamin on Plaintiffs’
malicious prosecution claims. 18
A.

Defendants Wright, Abril, and Benjamin Had Arguable Probable Cause to
Believe that Plaintiffs Committed Larceny
1.

Relevant Facts

Viewed in the light most favorable to Plaintiffs, the circumstances under which Defendants
Wright, Abril, and Benjamin came to learn of Plaintiffs’ taking of the air conditioners were as
follows.

On February 25, 2013, Plaintiffs arrived at the Kingsland Warehouse, where they

encountered Holder. (Defs.’ 56.1, ¶ 20; Pls.’ 56.1, ¶ 20; Fleurimond Dep., Dkt. 60-1, at ECF 482.)
Although Holder formally worked as a Records Aide for DOHMH (Defs.’ 56.1, ¶ 10), Plaintif fs
believed that Holder was a DOHMH supervisor who had authority to determine which items
should remain in or be removed from the Kingsland Warehouse, based on paperwork Plaintif fs
had received in the past identifying Holder as a supervisor (Fleurimond Dep., Dkt. 60-1, at
ECF 495–96). Holder called Abril to tell her that Plaintiffs were at the Kingsland Warehouse to
pick up supplies (Defs.’ 56.1, ¶ 5), and Abril directed Low to go to the Kingsland Warehouse to
help Plaintiffs transport items (Abril Dep., Dkt. 60-3, at ECF 683; Defs.’ 56.1, ¶ 24).
While Plaintiffs were waiting for Low on the loading dock at the Kingsland Warehouse
(id. ¶ 25), Plaintiffs noticed stacks of air conditioners (id. ¶ 26) and Fleurimond asked Holder if he
could take a few of them home for personal use (Fleurimond Dep., Dkt. 60-1 at ECF 486). Holder
replied that the air conditioners were going into the garbage anyway and that Plaintiffs could

Because these grounds provide a sufficient basis for granting Defendants summar y
judgment on Plaintiffs’ malicious prosecution claims, the Court does not address Defendants’ other
arguments as to malicious prosecution. See Wang v. State Univ. of N.Y. Health Sci. Ctr. at Stony
Brook, 470 F. Supp. 2d 178, 189–90 (E.D.N.Y. 2006) (declining to address alternative reason to
dismiss claim where the court granted summary judgment to defendants on separate grounds).
18

16

therefore take as many of the air conditioners home as they wanted. (Id. at ECF 486, 538.)
Plaintiffs then loaded several air conditioners into each of their work vans with Holder’s help.
(Defs.’ 56.1, ¶¶ 30–31; Fleurimond Dep., Dkt. 60-1, at ECF 490.) Low then arrived at the
Kingsland Warehouse, where he observed the air conditioners in Plaintiffs’ work vans, but did not
raise any issue with Plaintiffs. (Defs.’ 56.1, ¶¶ 32–34; Pls.’ 56.1, ¶ 34.) After Plaintiffs left the
Kingsland Warehouse, Low contacted Wright and told him about the air conditioners that he had
seen in Plaintiffs’ work vans. (Defs.’ 56.1, ¶ 36.) Wright called Abril and told her that Low had
observed the air conditioners in Plaintiffs’ work vans. (Abril Dep., Dkt. 60-3, at ECF 682–83.)
Wright then called Fleurimond and told him to return the air conditioners to the Kingsla nd
Warehouse. (Defs.’ 56.1, ¶ 39.) During the call, Fleurimond informed Wright that Holder had
given Plaintiffs permission to take the air conditioners, to which Wright responded that
“they found out you guys weren’t supposed to take them, so bring them back.” (Fleurimond Dep.,
Dkt. 60-1, at ECF 498–99.) After calling Digiosa to tell him that the air conditioners needed to be
returned, Fleurimond called Wright back.

(Id.)

Wright advised Plaintiffs to bring the air

conditioners back to the Kingsland Warehouse the following morning instead of trying to bring
them back that same day. (Id.) After Plaintiffs finished work for the day, they traveled to their
respective homes in their DOHMH work vans, where the air conditioners remained overnight.
(Defs.’ 56.1, ¶¶ 41–42; Fleurimond Dep., Dkt. 60-1, at ECF 497.) Plaintiffs returned the air
conditioners to the Kingsland Warehouse the following morning, February 26, 2013. (Defs.’ 56.1,
¶ 43.)
On February 25, 2013, after confirming that the air conditioners were not supposed to be
removed but before the air conditioners were returned (Abril Dep., Dkt. 60-3, at ECF 683–84),
Abril contacted Benjamin and informed her “about the missing air conditioners” (Defs.’ 56.1,

17

¶ 40). Benjamin told Abril to file a report with DOHMH police. (Abril Dep., Dkt. 60-3, at ECF
684.) Although Abril learned the next day before contacting DOHMH police that Plaintiffs had
returned the air conditioners (id.), she went ahead and reported Plaintiffs’ removal of the air
conditioners (Defs.’ 56.1, ¶ 44). After reporting the incident to DOHMH police, Abril told
Benjamin that the air conditioners had been returned.

(Abril. Dep., Dkt. 60-3, at ECF 684.)

Benjamin nonetheless instructed Abril to file a criminal complaint with the NYPD. (Defs.’ 56.1,
¶ 46; Abril Dep., Dkt. 60-3, at ECF 684.)
2.

Analysis

While, from Plaintiffs’ perspective, the initiation of prosecution against them seems
unjustified, the Court finds that, even construing the facts in the light most favorable to Plaintif fs,
there existed arguable probable cause for Wright Abril, and Benjamin to believe that Plaintiffs had
committed a crime at the time Defendant Abril reported the incident to the NYPD. “Probable
cause—let alone arguable probable cause, which is all that [the Court] need determine—does not
require that the person act on accurate information, but simply that the information be ‘reasonably
trustworthy’ and ‘sufficient to warrant a person of reasonable caution in the belief that arrest . . .
is necessary.’” Vallen v. Connelly, 185 F. App’x 22, 24 (2d Cir. 2006) (summary order) (quoting
O’Neill v. Town of Babylon, 986 F.2d 646, 650 (2d Cir. 1993)).
Here, Defendants Wright, Abril, and Benjamin—to the extent they participated in the
prosecution of Plaintiffs—acted on reasonably trustworthy information in doing so and had at least
arguable probable cause to believe that Plaintiffs had committed larceny. “A person steals property
and commits larceny when, with intent to deprive another of property or to appropriate the same
to himself or to a third person, he wrongfully takes, obtains or withholds such property from an
owner thereof.” N.Y. Penal Law § 155.05(1). Plaintiffs do not dispute that they removed the air

18

conditioners from the Kingsland Warehouse with the intent to take them home for their personal
use (Defs.’ 56.1, ¶¶ 30–31), but instead argue that there was no probable cause or even arguable
probable cause to believe that Plaintiffs had committed larceny. (See Plaintiffs’ Opposition Brief
(“Pls.’ Opp.”), Dkt. 58, at ECF 403–08.) Specifically, Plaintiffs argue that Defendants could not
have reasonably believed that Plaintiffs committed this offense because Defendants knew, or
should have known, that (1) Plaintiffs subjectively believed that they were allowed to take the air
conditioners and thus had no intent to deprive DOHMH of its property; (2) the air conditio ners
never left DOHMH work vans; and (3) Plaintiffs returned the air conditioners the following
morning as instructed by Wright to do so. (Id.) The Court disagrees.
First, even if Defendants Wright, Abril, and Benjamin were all aware that Plaintif fs
maintained that Defendant Holder had given them permission to take the air conditioners, these
Defendants could have nevertheless reasonably believed that Plaintiffs were lying, given that
Holder consistently denied telling Plaintiffs that they could take the air conditioners. Indeed, at
deposition, Defendant Abril explained that when she learned that Plaintiffs said that Defendant
Holder gave them permission to take the air conditioners, she “asked [Holder] if he gave them
permission and he said no.” (Abril Dep., Dkt. 60-3, at ECF 690.) Thus, Abril could have simply
credited Holder’s version of events over that of Plaintiffs. See Bonds v. City of New York, No. 12CV-1772 (ARR) (MDG), 2014 WL 2440542, at *7 (E.D.N.Y. May 30, 2014) (“In order to raise a
triable issue of fact on the probable cause element, [a] plaintiff cannot simply rely on his testimony
denying that he committed the criminal offense for which [he was] arrested and charged [].”);
Brown v. City of New York, No. 08-CV-5095 (FB) (MDG), 2013 WL 1338785, at *4 (E.D.N.Y.

19

Apr. 1, 2013) (“Courts have repeatedly determined that a plaintiff’s own testimony is insuffic ie nt
to rebut the presumption of probable cause.”). 19
Second, even if Wright, Abril, and Benjamin were aware that the air conditioners never
left Plaintiffs’ work vans and that Plaintiffs returned them the following day at Wright’s request,
they still could have reasonably believed that Plaintiffs had committed larceny. For purposes of
New York’s larceny statute,
“[d]eprive” means (a) to withhold it or cause it to be withheld permanently or for
so extended a period or under such circumstances that the major portion of its
economic value or benefit is lost to [the owner], or (b) to dispose of the property in
such manner or under such circumstances as to render it unlikely that an owner will
recover such property.
To “appropriate” property of another to oneself or a third person means (a) to
exercise control over it, or to aid a third person to exercise control over it,
permanently or for so extended a period or under such circumstances as to acquire
the major portion of its economic value or benefit, or (b) to dispose of the property
for the benefit of oneself or a third person.
Dyal v. Adames, No. 16-CV-2133 (JBW), 2018 WL 2103202, at *3 (E.D.N.Y. May 7, 2018) (citing
N.Y. Penal Law § 155.00(3), (4)) (quotations and italics omitted). The New York Court of Appeals
has interpreted the taking element of New York Penal Law § 155.00 as follows:

Furthermore, even if these Defendants thought that Holder, in fact, had told Plaintiffs
they could take the air conditioners, Abril, Benjamin, and Wright still could have reasonably
concluded that Plaintiffs lied about believing that Holder had the authority to grant permission and
that Plaintiffs were using this toothless permission to conceal their intent to steal the air
conditioners. See People v. Zona, 928 N.E.2d 1041, 1045 (N.Y. 2010) (noting that a crimina l
defendant asserting that he had permission to take an item would only be insulated from liability
for larceny if he had “a good faith belief that the property was appropriated under a claim of right”
(quotation omitted)). Although Plaintiff Fleurimond testified in his deposition that he believed
Holder had the authority based on letters that Fleurimond had seen identifying Holder as a
supervisor, the letters themselves are not in evidence, and Defendants dispute that Holder was
Plaintiffs’ supervisor or had the authority to give away DOHMH property. (See Defendants’ Reply
56.1 Statement, Dkt. 57, ¶ 21.) In determining whether Defendants Abril, Benjamin, and Wright
are entitled to qualified immunity, the Court is not required to accept Plaintiffs’ self-serving,
unsupported claim that they (Plaintiffs) believed that Holder had the authority to give them
permission to take the air conditioners. See Bonds, 2014 WL 2440542, at *7.
19

20

a shoplifter who exercises dominion and control over the goods wholly inconsis te nt
with the continued rights of the owner can be guilty of larceny even if apprehended
before leaving the store, a car thief who starts the car can commit larceny before he
actually drives the automobile away, and a pickpocket can be guilty of larceny even
though his removal of the victim’s possessions is interrupted before completion.
People v. Robinson, 459 N.E.2d 483, 484 (N.Y. 1983) (citations omitted); see People v. Hardy, 43
N.E.3d 734, 739 (N.Y. 2015) (“The taking element of larceny is satisfied by a showing that the
thief exercised dominion and control over the property for a period of time, however temporary,
in a manner wholly inconsistent with the owner’s continued rights.” (quotations omitted)). Thus,
even knowing that Plaintiffs had only taken the air conditioners for a short period of time,
Defendants Wright, Abril, and Benjamin still could have reasonably believed that this conduct
constituted larceny.

Walczyk, 496 F.3d at 154 (explaining that arguable probable cause exists

where state officials “of reasonable competence could disagree on the legality of the action at issue
in its particular factual context” (quotation omitted)).
Similarly, even assuming arguendo that these Defendants knew that the air conditio ners
never left Plaintiffs’ DOHMH vans, this fact would not render their belief that Plaintiffs had stolen
the air conditioners and intended to keep them any less reasonable. As New York Penal Law §
155.00 indicates, a person commits larceny by exercising control over the stolen property “under
such circumstances as to acquire the major portion of its economic value or benefit”; there is no
requirement that the person exercise that control in or on the person’s own property. Furthermore,
although the air conditioners remaining in the vans could be evidence of Plaintiffs’ lack of intent
to steal the units and their intent to return them, it was nonetheless reasonable for Defendants to
conclude otherwise, e.g., that the units only remained in the vans because Plaintiffs were caught
before they could transport or otherwise dispose of them and that the presence of the units in the
vans simply corroborated Plaintiffs’ original intent to steal them. For the same reason, Defendants

21

Wright, Abril, and Benjamin’s knowledge that Plaintiffs returned the air conditioners at Wright’s
direction does not undermine the reasonableness of their belief that Plaintiffs’ original intent was
to steal them and that Plaintiffs only returned the units because the theft was discovered and Wright
confronted them about it. Walczyk, 496 F.3d at 154.
Accordingly, the Court determines that Wright, Abril, and Benjamin all had at least
arguable probable cause to believe that Plaintiffs committed larceny. 20 The Court therefore grants
summary judgment to Defendants Wright, Abril, and Benjamin on Plaintiffs’ malic io us
prosecution claims against them.

Where, as here, a grand jury has returned an indictment corroborating the crimina l
charges, the following standard applies:
20

A grand jury indictment gives rise to a presumption that probable cause exists and
a claim for malicious prosecution is thereby defeated. The presumption may be
rebutted by wrongful acts on the part of [a state official], including fraud, perjury,
or the suppression of the evidence. For example, when [a state official] provides
false information to a prosecutor, what prosecutors do subsequently has no effect
whatsoever on the [state official’s] initial, potentially tortious behavior. But if the
prosecution relied on independent, untainted information to establish probable
cause, a complaining official will not be responsible for the prosecution that
follows.
Rentas v. Ruffin, 816 F.3d 214, 220–21 (2d Cir. 2016) (quotations, alterations, and citations
omitted).
The Court notes that, of Defendants Wright, Abril, and Benjamin, Plaintiffs only allege
that Abril testified before the grand jury (Pls.’ 56.1, ¶ 53), and Plaintiffs point to no evidence
suggesting that she did so in a perjurious or fraudulent manner. Indeed, in her complaint to the
NYPD on March 1, 2013, Abril disclosed that the air conditioners had already been returned.
(NYPD Complaint Report, Dkt. 55-7, at ECF 307–08.) Thus, even beyond the existence of
arguable probable cause, the presumption of actual probable cause also applies in this case and
has not been rebutted. See Stukes v. City of New York, No. 13-CV-6166 (NGG) (VVP), 2015 WL
1246542, at *5 (E.D.N.Y. Mar. 17, 2015) (dismissing malicious prosecution claim where the
plaintiffs adduced no evidence that defendants “fail[ed] to disclose evidence” to law enforceme nt
and/or the prosecutor “that would [have] conclusively establish[ed] [plaintiffs’] innocence” or
“negate the possibility that [the plaintiffs] had committed the crime” (quotations omitted)).
22

B.

Defendants Holder and Low Did Not Initiate or Continue Criminal
Proceedings Against Plaintiffs
1.

Relevant Facts

Viewed in the light most favorable to Plaintiffs, Defendants Holder’s and Low’s
involvement in Plaintiffs’ prosecution was as follows. On March 1, 2013, Defendant Abril went
to the NYPD’s 94th Precinct and made a complaint about the removal of the air conditioners from
the Kingsland Warehouse. (Id. ¶ 46; Abril Dep., Dkt. 60-3, at ECF 684.) NYPD officers then
spoke to Holder and Low as part of an investigation into the alleged crime. (Defs.’ 56.1, ¶ 48.)
As part of the investigation, Low told law enforcement that Holder observed Plaintiffs drive away
with the stolen air conditioners. (NYPD Complaint Report, Dkt. 55-7, at ECF 308.) Low also told
law enforcement that Plaintiffs were employed by DOHMH and were known for taking things in
the past (id.), even though neither Fleurimond nor Digiosa had ever stolen anything from DOHMH
(Pls.’ 56.1, ¶¶ 49, 69). Additionally, Low told law enforcement that Plaintiffs returned the stolen
air conditioners after being confronted by a supervisor. (NYPD Complaint Report, Dkt. 55-7, at
ECF 308.) Finally, Low stated that Plaintiffs took advantage of the fact that surveillance cameras
were recently removed from the Kingsland Warehouse (id.), even though there was no credible
basis on which Low could think that Plaintiffs knew that the surveillance cameras at issue were
destroyed during Hurricane Sandy (Pls.’ 56.1, ¶ 80). Holder testified at deposition that he went
over to DOHMH’s main office to meet with police and that they asked him what happened on the
day the air conditioners were taken and that he answered their questions. (Holder Dep., Dkt. 602, at ECF 661.)
Plaintiffs were arrested on March 15, 2013. (Defs.’ 56.1, ¶ 50; NYPD Arrest Reports,
Dkt. 55-8, at ECF 313–18.) That same day, the Kings County District Attorney’s Office charged
Plaintiffs with Attempted Criminal Possession of Stolen Property in the Third, Fourth and Fifth
23

degrees. (Id. ¶ 52.) The charging instrument was signed by NYPD Detective John Gipson, on
information from DOHMH Investigator Lloyd and Defendants Low and Holder. (Id.) The Kings
County District Attorney’s Office then presented Plaintiffs’ criminal case to a grand jury, before
which Holder and Low both testified. (Id. ¶ 53.)
2.

Analysis

Under these facts, the Court concludes that no reasonable jury could conclude that either
Defendant Holder or Defendant Low initiated or continued the criminal proceedings against
Plaintiffs—the first element of a malicious prosecution claim.

With respect to the initia tio n

requirement of a malicious prosecution claim, the Second Circuit has held that “in order for an
individual to ‘initiate’ a prosecution for these purposes, the mere reporting of a crime to police and
giving testimony are insufficient; it must be shown that defendant played an active role in the
prosecution, such as giving advice and encouragement or importuning the authorities to act.”
Rohman v. N.Y.C. Transit Auth. (NYCTA), 215 F.3d 208, 217 (2d Cir. 2000) (quotations and
brackets omitted); see also Rothstein v. Carriere, 373 F.3d 275, 293 (2d Cir. 2004) (“A plaintiff
in a malicious prosecution case must prove that the defendant initiated the criminal proceeding.
As we have stated before, reporting a crime to law enforcement and giving testimony does not
constitute the ‘initiation’ of a criminal prosecution.”).
At the outset, the Court notes that neither Holder’s nor Low’s testimony in front of the
grand jury can provide a factual basis on which a reasonable jury could find that they initiated any
criminal proceedings against Plaintiffs. See Rehberg v. Paulk, 566 U.S. 356, 369 (2012) (“[W]e
conclude that grand jury witnesses should enjoy the same immunity as witnesses at trial. This
means that a grand jury witness has absolute immunity from any § 1983 claim based on the
witness’ testimony.”); Coggins v. Buonara, 776 F.3d 108, 113 (2d Cir. 2015) (“When a [state

24

official] claims absolute immunity for his grand jury testimony under Rehberg, the court should
determine whether the plaintiff can make out the elements of his § 1983 claim without resorting
to the grand jury testimony.”).

Without the grand jury testimony, all Plaintiffs can point to in

support of their contention that Holder and Low initiated criminal proceedings against Plaintif fs
are the statements that Holder and Low made to authorities as part of the investigation into the
alleged crime. (Defs.’ 56.1, ¶¶ 48, 52.)
Even if a reasonable jury concluded that Holder and Low knowingly provided false
information during the course of the NYPD’s investigation, it still could not find that Holder and
Low had initiated the prosecution of Plaintiffs. A prosecutor is presumed to “exercise independent
judgment in deciding whether to initiate and continue a criminal proceeding, . . . [unless it is]
demonstrate[d] that the defendant played an active role in the prosecution, such as giving advice
and encouragement or importuning the authorities to act.” Espada v. Schneider, 522 F. Supp. 2d
544, 553 (S.D.N.Y. 2007) (quotations and citation omitted).

Recent authority in this Circuit

suggests that knowingly providing false information to law enforcement and/or prosecutors does
not necessarily suffice to meet this standard. Specifically, in Watkins v. Sims, 648 F. App’x 49,
52 (2d Cir. 2016) (summary order), 21 the plaintiff argued that the defendants had initiated or
continued the criminal proceedings against him by knowingly providing false information to
prosecutors. Watkins, 648 F. App’x at 51–52. Rejecting this argument, the Second Circuit panel
reasoned:
Assuming, arguendo, that [the defendants] provided false or mislead ing
information to the prosecution during its investigation, we find no evidence,
viewing the record in the light most favorable to [the plaintiff], from which a
reasonable jury could conclude that either [defendant] took an active role in [the
See Jackler v. Byrne, 658 F.3d 225, 244 (2d Cir. 2011) (noting that “denying summar y
orders precedential effect does not mean that the court considers itself free to rule differently in
similar cases” (quotation and brackets omitted)).
21

25

plaintiff’s] criminal prosecution. [The plaintiff] claim[ed] that [one defendant], in
response to document requests from the District Attorney’s (“DA”) office,
‘deluged’ the DA with unsolicited information, but he points to only two documents
that [the defendant] provided that fell outside the scope of the request. No
reasonable jury could conclude on the basis of that evidence that [the defendant]’s
conduct went beyond the mere provision of information to the point where [the
defendant] encouraged or importuned the DA’s office to prosecute [the plaintif f].
There is similarly no evidence supporting the inference that [the other defendant]
encouraged or importuned the DA’s office to act when he met with its employees
in December 2005.
Id. at 52.
So too here. Assuming, arguendo, that Defendants Holder and Low knowingly provided
false information to law enforcement and/or prosecutors, Plaintiffs adduce no evidence on which
a reasonable jury could conclude that Holder or Low initiated the filing of the criminal complaint, 22
provided more inculpatory information to the authorities than was requested of them, or
“encouraged or importuned” the District Attorney’s office to prosecute Plaintiffs. Watkins, 648 F.
App’x at 52; see Zahrey v. Coffey, 221 F.3d 342, 348 (2d Cir. 2000) (“[I]f [the plaintiff] had
claimed only that [the defendant] fabricated evidence and did nothing to precipitate the sequence
of events that resulted in a deprivation of [the plaintiff’s] liberty, no constitutional violation would
have been alleged.”); Carter v. Port Auth. of N.Y. & N.J., No. 03-CV-8751 (DLC), 2004 WL
2978282, at *8 (S.D.N.Y. Dec. 20, 2004) (granting summary judgment on a malicious prosecution
claim against an officer who filled out a witness statement that “was not one of the required
documents to initiate criminal process”).
The Court recognizes that there is a conflicting line of cases that have held that “[g]iving
information to the police that is known to be false qualifies as the commencement of the

Cf. Cunninham v. New York City, No. 04-CV-10232 (LBS), 2007 WL 2743580, at *5
(S.D.N.Y. Sept. 18, 2007) (“In the present action, Officer Rollins initiated the robbery prosecution
by filing the charges of second-degree attempted robbery against the plaintiffs.”).
22

26

prosecution” for purposes of a malicious prosecution claim, Rivers v. Towers, Perrin, Forster &
Crosby Inc., No. 07-CV-5441 (DGT) (RML), 2009 WL 817852, at *3 (E.D.N.Y. Mar. 27, 2009),
or, at least, can qualify as commencement of the prosecution, see, e.g., Estiverne v. EsernioJenssen, 581 F. Supp. 2d 335, 348 (E.D.N.Y. 2008) (“Merely giving false information to the
authorities does not constitute initiation of the proceeding without an additional allegation or
showing that, at the time the information was provided, the defendant knew it to be false, yet still
gave it to the police or District Attorney.” (quotation omitted)); see also Stampf v. Long Island
R.R. Co., 761 F.3d 192, 199–200 (2d Cir. 2014) (approvingly citing district court case with the
following quoted text in a parenthetical: “Giving information to the police that is known to be false
qualifies as the commencement of a prosecution.”).

The Court is nevertheless persuaded by

Watkins—the facts of which more closely resemble those presented here than those in Rivers,
Estiverne, and Stampf—and holds that that Holder’s and Low’s alleged provision of false
information to the NPYD does not qualify as the commencement of prosecution for purposes of
Plaintiffs’ malicious prosecution claims. 23
Accordingly, the Court concludes that Plaintiffs cannot prove that Holder or Low initiated
or continued the criminal proceedings against them, which is the first element of a malic io us
prosecution claim. See TADCO Constr. Corp. v. Dormitory Auth. of State of N.Y., 700 F. Supp.
2d 253, 270 (E.D.N.Y. 2010) (dismissing malicious prosecution claim where plaintiff could not
show that defendants “actively engaged in [plaintiff’s] prosecution”); cf. Shattuck v. Town of
Stratford, 233 F. Supp. 2d 301, 314 (D. Conn. 2002) (“[A defendant can] be liable [] for § 1983
Notably, in Stampf, the defendant (who provided false information) was the first
individual to initiate contact with the police to report the crime, see 761 F.3d at 196–97, which
neither Holder nor Low did in this case. (See Defs.’ 56.1, ¶ 46; Abril Dep., Dkt. 60-3, at ECF 684
(noting that Abril made the initial complaint to the NYPD about the missing air conditioners at
Benjamin’s request).)
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malicious prosecution . . . even though she did not apply for the arrest warrants, if the plaintif fs
[can] show that she had initiated or instigated the proceedings against them by contacting the police
and then encouraging their prosecution.”).

The Court therefore grants summary judgment to

Defendants Holder and Low on Plaintiffs’ malicious prosecution claims against them.
II.

Municipal Liability
“A municipality may be liable under § 1983 only if the governmental body itself subjects

a person to a deprivation of rights or causes a person to be subjected to such deprivation.” Cash
v. Cty. of Erie, 654 F.3d 324, 333 (2d Cir. 2011) (quotations omitted). “[T]he elements of a Monell
claim include: 1) an official policy or custom that, 2) causes the plaintiff to be subjected to, 3) a
deprivation of a constitutional right.” Musso v. City of New York, No. 05-CV-2511 (RRM) (JO),
2008 WL 3200208, at *4 (E.D.N.Y. July 24, 2008) (citing Batista v. Rodriguez, 702 F.2d 393, 397
(2d Cir. 1987)). To demonstrate an official policy or custom, a plaintiff must show “the existence
of a formal policy which is officially endorsed by the municipality,” or a practice that is “so
persistent and widespread that it constitutes a custom or usage of which supervisory authorities
must have been aware, or that a municipal custom, policy, or usage can be inferred from the
evidence of deliberate indifference of supervisory officials as to such abuses.” Iacovangelo v.
Corr. Med. Care, Inc., 624 F. App’x 10, 13 (2d Cir. 2015) (summary order) (citing Jones v. Town
of East Haven, 691 F.3d 72, 80–81 (2d Cir. 2012)).
In support of their municipal liability claim against Defendant City of New York, Plaintif fs
argue that “[t]he City of New York’s failure to adequately train their DOHMH laborers in the
proper procedure for handling and removing salvage directly cause[d] the violation of [P]laintiffs’
constitutional rights under § 1983.” (Pls.’ Opp., Dkt. 58, at ECF 410–11.) “When a Monell claim
relies on the theory that the municipality failed to train certain employees about their legal duty to

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avoid violating individuals’ rights,” the plaintiff is required to demonstrate “that the municipality’s
failure to train its employees in a relevant respect amounted to deliberate indifference to the rights
of the persons with whom the untrained employees came into contact.” Alwan v. City of New York,
311 F. Supp. 3d 570, 578 (E.D.N.Y. 2018) (quotations and alterations omitted).

The Second

Circuit has established three requirements for such claims:
First, the plaintiff must show that a policymaker knows to a moral certainty that her
employees will confront a given situation. Thus, a policymaker does not exhibit
deliberate indifference by failing to train employees for rare or unforeseen events.
Second, the plaintiff must show that the situation either presents the employee with
a difficult choice of the sort that training or supervision will make less difficult or
that there is a history of employees mishandling the situation. . . . A choice might
[] be difficult where, although the proper course is clear, the employee has powerful
incentives to make the wrong choice.
Finally, the plaintiff must show that the wrong choice by the city employee will
frequently cause the deprivation of a citizen’s constitutional rights.
Walker v. City of New York, 974 F.2d 293, 297–98 (2d Cir. 1992) (citations omitted).
Applying this standard, the Court concludes that Plaintiffs have failed to adduce suffic ie nt
evidence to permit a reasonable jury to find Defendant City of New York liable under § 1983.
Even assuming, arguendo, that Plaintiffs could sufficiently demonstrate that their constitutio na l
rights were violated, they have not sufficiently connected that constitutional violation to Defendant
City of New York. As for the first and second requirements of the test established in Walker,
Plaintiffs adduce no evidence demonstrating that DOHMH employees routinely confront
situations in which they are unsure as to whether DOHMH property can be taken by employees
for personal use, and evidence from the record suggests that most DOHMH employees would
reasonably determine that doing so would be inappropriate. (See generally Arbitration Opinion &
Award, Dkt. 55-12 (determining that, by removing the air conditioners from the Kingsla nd

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Warehouse, Plaintiffs’ violated DOHMH Department Rule 3.25, which covers “[c]onduct
prejudicial to good order and discipline”).)
Indeed, it seems obvious, regardless of the work setting, that employees would know that
they should not be taking their employers’ property to use or dispose of for their own benefit, at
least without clear and proper authorization. That Plaintiffs argue that there was uncertainty about
whether Defendant Holder, in particular, had such authority does not suggest or create the kind of
uncertainty or moral dilemma for employees that might give rise to a failure to train claim. As for
the third requirement of the Walker test, Plaintiffs present no evidence suggesting that, in the
absence of appropriate training, constitutional violations of the sort that they allege would occur
frequently. Therefore, no reasonable jury could find that any policymaker acting on behalf of
Defendant City of New York “should have known that inadequate training or supervision was ‘so
likely to result in the violation of constitutional rights, that the policymakers of the city can
reasonably be said to have been deliberately indifferent to the need.’” Walker, 974 F.2d at 298
(quoting City of Canton v. Harris, 489 U.S. 378, 390 (1989)).
Accordingly, the Court grants summary judgment in favor of Defendant City of New York
on Plaintiffs’ municipal liability claim against it.
CONCLUSION
For the reasons stated above, the Court grants Defendants’ motion for summary judgment
in its entirety and dismisses this action.

The Clerk of Court is respectfully directed to enter

judgment and close this case.

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SO ORDERED.
/s/ Pamela K. Chen
Pamela K. Chen
United States District Judge

Dated: August 21, 2019
Brooklyn, New York

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